was an exceedingly odious tax, involving an inquiry into all the sources of every individual's income, and it may well have been the design of Congress to indicate from the start that it was to be only temporary in its operation. But no one, I think, can carefully compare the two Acts of 1862 and 1864, without coming to the conclusion that the limit of the income tax was affixed only to that tax designated as "income tax" in the Act of 1862.

The judgments must be reversed.

Mr. Justice Strong, dissenting:

I dissent from the judgments given in these cases, and from the reasons assigned in support of the judgments.

If it ever was claimed, it is no longer contended by anyone that the tax on dividends and Federal salaries, for the collection and payment of which provision was made by the 120th, 122d and 123d sections of the Internal Revenue Act of 1864, 13 Stat. at L., 284, and its amendments, was not a tax upon income, and a part of the income tax levied by the 116th section of the Act. And, notwithstanding what was decided in Barnes v. R. R. Co, 17 Wall., 294 [84 U. S., XXI., 544], I regard it as having been settled by the subsequent case of U. S. v. R. R. Co., 17 Wall., 322 [84 U. S., XXI., 597], that the tax on dividends declared and interest payable by the companies mentioned in the 122d section was a tax upon the stockholders and bond holders of the companies, and not a tax upon the corporations. Of this opinion were all the judges of this court except two. Though the corporations were by the law made agents of the government for collecting it and paying it over, the tax itself was ruled to be a part of the income tax of the persons entitled to the interest or dividends. For the same reasons which compelled such a decision, the tax upon divi dends declared by banking, trust and insurance companies, and the tax upon Federal salaries, for the collection and payment of which provision was made in the 120th and the 123d section of the Act, were income taxes of the shareholders of those companies, and of the officers from whose salaries they were directed to be deducted.

issued a circular, dated July 1, 1864, declaring
that "all dividends payable on and after July 1,
1864, no matter when declared, are subject to
the duty of five per centum.
Much more, if
dividends are not income before they are paya-
ble, are they not income before they are de-
clared? I repeat, then, the taxes in contro-
versy now were taxes upon the income of the
shareholders for the year 1870. They were,
therefore, not authorized by the statute.

The 119th section of the Act, I think, put an end to all taxes on income derived from any source after December 31, 1869. Its language was, "The duties on incomes herein imposed shall be levied on the first day of May, and be due and payable on or before the 30th day of June in each year, until and including the year 1870, and no longer." Construing this, as it must be construed, in connection with the 116th section, the matter is plain. That section declared that the income duty provided for in the Act should "Be assessed, collected, and paid upon the gains, profits or income for the year ending the 31st day of December next preceding the time for levying, collecting and paying said duty." The tax authorized to be levied in May, 1870, and the last authorized by the Act of 1864, or any of its amendments, was a tax upon the income derived by the tax payer in 1869.

Returning, then, to the 119th section, it plainly limited the duration of the tax upon income of every kind-all income upon which the Act imposed a tax. It excepted none. It did not speak of taxes on income, a return of which was required to be made by the tax payer, but its language was, "the duties herein imposed." The 119th section imposed no tax. Its reference, therefore, must have been to taxes imposed by other sections of the Act; to those imposed by the 116th section, which were taxes on income from any source, whether dividends of railroad companies, or banks, or insurance companies, or any other corporations not particularly specified. It is true the 119th section makes no particular mention of taxes on that portion of income mentioned in the 120th, 122d and 123d sections; but such mention would have been superfluous. They were included in the large classification, "the duties herein imposed." The taxes upon such dividends had been paid before the expiration of the previous year; and the Act guarded against double taxation by authorizing a deduction from the required estimate, by the assessor, of the income on which the tax had been paid.

And if this be so, then the tax in controversy in these cases was a tax upon the income of 1870, and not upon the income of 1869. None of the dividends were declared until after January 1, 1870, and some of them not until many months after that date. True, the funds out of which the dividends were made were composed Indeed, I think it impossible to escape from of earnings of the company, in some cases the conclusion that the 119th section was inwholly and in others partly, in 1869; but these tended to enact that no tax should be levied or earnings were not available to the shareholders collected upon any income which was not reuntil the dividends were made out of them. Until ceived by the tax payer or derived by him, or then they were in no sense the income of the which did not accrue to him on or before the shareholders and taxable as such. In the ex- last day of December, 1869. Any other conpress words of the Act, it was income derived by struction would make the law offensively disthe tax payer which alone was made subject to criminating and grossly unequal. I cannot bethe tax. The language of the law was that the lieve Congress intended that one who had lent duty on the dividends should be paid "whenever his money to a telegraph company, to a bridge the same" (that is the dividends) shall be paya- company, or to a mining or manufacturing comble." And such was the construction which was pany, or one who might receive dividends made from the beginning given to the Act. Prior to by such companies, should be exempt from a the enactment of 1864 there was an income tax tax upon his interest and dividends received on dividends at the rate of three per cent., and after December 31, 1869, while one who had lent when by that Act the rate was raised to five per to a canal, railroad, banking, insurance, savings cent., the Commissioner of Internal Revenue | fund or trust company, or who derived divi

dends from them, should continue indefinitely to pay an income tax on his interest and dividends. I cannot believe it was intended to tax the salaries of officers of the United States after the expiration of the tax upon all other salaries. I will not attribute such injustice to Congress. I discover no intent to make such odious discriminations and, in my opinion, such an intent ought clearly to appear, before a court would be justified in giving the construction to the Act which works such a result.

collector five per cent. of the dividends made by them in 1870, and they had no authority to detain any portion of such dividends from their stockholders. On the contrary, it was their duty to pay over the entire dividends to the shareholders, who acquired a vested right in them as soon as they were made, and calling upon them to pay a tax on those dividends was an attempt to enforce a duty that had no existence. It was substantially an effort to enforce a penalty for an omission to do that which they had no right to do, a penalty equal to the amount of a five per cent. tax on the dividends, with an additional five per cent. thereon. The Companies, at most, were merely agents of the government to collect a tax from the shareholders and pay it over. Their liability, if any, arose out of an unlawful failure to discharge these duties. But there was no such duty when the dividends were made. Surely the declaratory Act of 1870 cannot be regarded as operating retrospectively to make the act or omission of these Companies unlawful, and punishable as an offense, when the act or omission was innocent at the time when it occurred. Were it conceded that the construction given by Congress is binding in all cases where it would not disturb vested rights, or operate practically as an ex post facto law, it can have no application to such a case as the present.

I need say no more upon this part of the case. If the tax upon dividends, made by banking, trust and insurance companies, the tax upon railroad dividends, and upon salaries of Federal officers was a tax upon income; if the tax mentioned in the 120th and 122d sections was a tax upon the shareholder, or loanholder, and not upon the corporations; if dividends declared in 1870 are not income of the shareholders in 1869; and if the 119th section put an end to all income tax upon income not received by shareholders in companies on or before December 31, 1869, each of which I have endeavored to show, the right disposition of the cases before us is clear. The several Companies who are defendants in error were not authorized to retain any tax out of the dividends made to their shareholders in 1870. No such tax had any legal existence, and the Companies were under no obligation to pay it. The judgments they have recovered for the Of course, I am not to be understood as mainsums illegally exacted from them ought, there-taining that when the declaratory Act was fore, to be affirmed. passed Congress had no power to impose a tax upon any income that had been received before that time. What I mean to assert is that it cannot be admitted Congress intended by the Act of 1870 to subject any institution to a penalty for not having, before its passage, collected and paid a tax which had not been imposed. The Act, therefore, in my judgment, has no application to the present cases, and I think the judgments should be affirmed.

I am authorized to state that my brethren Mr. Justice Davis and Mr. Justice Field concur in this dissent.

Cited 22 Wall., 632; 94 U. S., 620; 95 U. S., 79, 80; 101 U. S., 549; 104 U. S., 679; 9 Ben., 72; 15 Blatchf.,

402.

I do not overlook the later Act of Congress, passed July 14, 1870, to which a majority of my brethren attach some importance as bearing upon these cases. The 17th section of that Act enacted that sections 120, 121, 122 and 123 of the Act of June 30,1864, entitled 'An Act to Provide Internal Revenue to Support the Government, to Pay Interest on the Public Debt, and for Other Purposes, as amended by the Act of July 13. 1866, 14 Stat. at L., 98, and the Act of March 2, 1867, 14 Stat. at L., 471, shall be construed to impose the taxes therein mentioned to the first day of August, 1870, but after that date no further taxes shall be levied and assessed under that section. This was, doubtless, intended as a legislative construction of the sections of the Act designated. I shall not turn aside to inquire at length how far the law-making power can determine authoritatively the meaning of an existing statute. The construction or interpreta tion of a statute would seem to be, ordinarily, a judicial rather than a legislative function. "I THE NEW YORK MAIL STEAMSHIP know that Acts declaratory of the meaning of former Acts are not uncommon. They are always to be regarded with respect, as expressive of legislative opinion; and, so far as they can operate upon subsequent transactions, they are of binding force. But it is well settled they cannot operate to disturb rights vested or acquired before their enactment, or to impose penalties for acts done before their passage, acts lawful when they were done. It is always presumed the Legislature had no intention to give them such an effect.

Now, if the income tax imposed by the Act of 1864 and its supplements expired with the 31st of December, 1869; if the Act did not prescribe a tax upon dividends made after that date, as I have endeavored to maintain, it was not the duty of these defendants in error to pay to the

CITY OF NEW ORLEANS, Appt.,

v.

COMPANY.

(See S. C., 20 Wall., 387-403.)

Judgment for contempt, when not reviewable— criminal case-rights from conquest in civil war -appointments by commanding general, when valid--power of officers so appointed--subsequent order.

1. This court has no jurisdiction to review the judgment of the circuit court, imposing a fine for contempt of that court.

NOTE.-There is no review of decree punishing for contempt; limits to rule.

Where a person has been committed for contempt of court, by a court of competent jurisdiction, he cannot, unless under some statute, have any appeal, writ of error or habeas corpus. It is not the usage of courts to deliver one committed by the decree of another court. Chamber's case, Cro. Car.,

2. Contempt of court is a specific criminal offense. "The city is not only proprietor of a locus The imposition of the fine is a judgment in a criminal case. This court can take cognizance of a crim-publicus, but also administrator. It belongs as inal case only upon a certificate of division in opin- much to the citizen of Ohio as to a citizen of New Orleans. It is a plan left open for the convenience of commerce, and for the use of the whole world; a thing hors du commerce." This same doctrine is held in New York. People v. Kerr, 27 N. Y., 188.

Halleck, Int. L.. 446-448, ch. 19, secs. 2-5; ch. 35, secs. 8, 9; ch. 32, secs. 1, 2; 776,; 6. They had power to contract for the use of a portion of the water front of the City for ten years, 777, sec. 4, 781; Twiss, Law Nat., ch. 4, sec. and when the military jurisdiction terminated, the 66, p. 126; 3 Phillim., 498, secs. 583, 584; Dilease did not fall with it. 7. An order of the commanding general issued gest, title Rights, Private Rights, Restitution seven months after the lease was made, after the Rights, of Captors; 1 Kent, Com., 92; Wheat. rights of the lessees had become vested, could not Int. L., 8th ed., secs. 346, 347, n. 169; tit. Belaffect the rights of the lessees, and was properly re-ligerent Occupation, sub. 4, Immovable Propfused as evidence. erty and sub. 9, Postliminium, Vattel, Phila. Argued Oct. 13, 1874. Decided Oct. 26, 1874. ed. of 1870. p. 395; 3 Phillim. Int. L., Law Lib. ed.. 505, 731; Heffter, Droit Int., Paris

APPEAL from the Circuit Court of the United, 1866; secs. 133, 138; 2 Marten, Droit Des

Mr. James Emott, for appellee: These officers in the City of New Orleans preserved at least all the powers appertaining to the offices they were appointed to fill. There were no loyal men to elect, so as to fill these offices. As a matter of necessity and duty to the people who had been subjugated, some gov- Leasing the pier was within the corporate ernment must be given them. As a grace and power of the City. The utmost that could be favor to them, that government was not mar-claimed against it would be that it was done by tial law, but an administration of their own mu- an unauthorized agent. Such an act can be ratnicipal institutions by the only men competent ified, and the acceptance of rent was a ratificato administer them. tion.

build a new wharf in front of the landing as designated, with new bulkheads to retain the levee earthworks throughout the whole extent of the front assigned to them, they furnishing the requisite labor and materials to keep the structure in complete order and repair until the termination of the lease, and then to deliver it to the city authorities in that condition, natural wear and tear only excepted. The Company was to have the right at its own cost to construct buildings and sheds within the inclosed space, as should be required for the transaction of their shipping and freighting business. The wharves were to be completed within a year from the date of the lease, of new materials, in a workmanlike manner, and to be protected by a line of heavy fender piles in front, of suffi cient size and strength to enable the largest of the Company's ships to land and load at the wharf without damage. All the improvements, consisting of wharves, bulkheads, fender piles, sheds, buildings and inclosures, were to be kept in good repair by the Company until the expiration of the lease.

The lease was not to be transferred without the City's consent, and in case of default by the Company to fulfill its engagements, the City had the right to annul it. At the expiration of the lease, all the improvements made by the Company were to become the property of the City. The Company agreed to pay an annual rent of $8,000 in monthly installments, for which it gave its promissory note. The Company expended more than $65,000 in making the improvements specified in the lease and duly paid its notes as they matured, down to the 11th of April, 1866, including the one then due.

of Major-General Canby, commanding that military department.

The court refused to receive it, and the City excepted. The following facts were agreed by the parties: from the execution of the lease to the 18th of April, 1866, the Company has been in peaceable possession of the demised premises, and had performed all its obligations under the lease. No notice was given by the City of the intended demolition of the inclosure, and it was done early in the morning. Under its charter of 1856, the City had, before the war, leased portions of its wharves to individuals and companies, and had in one instance farmed out the collections of levee dues upon all the wharves, by sections.

The damages resulting from the destruction of the Company's buildings, etc., and the necessary employment, in consequence of this destruction, of additional watchmen, amounts to $8,000.

At the hearing, the court decreed that Clark, the Mayor, should pay a fine of $300 for contempt of court wherewith he was charged; that the City should be enjoined from interfering with the possession and enjoyment of the demised premises by the Company during the life of the lease, and that the Company should recover from the City $8,000 for damages, and that the City should pay the costs of the suit.

Our remarks will be confined to the several objections to the decree taken by the counsel for the appellant.

The fine of $300 imposed upon the Mayor is beyond our jurisdiction. Contempt of court is a specific criminal offense. The imposition of the fine was a judgment in a criminal case. That part of the decree is as distinct from the residue as if it were a judgment upon an indictment for perjury committed in a deposition read at the hearing. Crosby's case, 3 Wils., 188; Williamson's case, 26 Pa. St., 24; Ex parte Kearney, 7 Wheat., 41. This court can take cognizance of a criminal case only upon a certificate of division in opinion. In Crosby's case, Mr. Justice Blackstone said: "The sole adjudication for contempt, and the punishment thereof, belongs exclusively and without interfering to each respective court." The circuit court having first acquired possession of the original case was en

On the 18th of that month, the City Surveyor, aided by a number of laborers acting under an order of the City Council, approved by the Mayor, destroyed the fence or inclosure erected by the Company. It had cost them $7,000. The Company filed a bill and a supplemental bill, whereby they prayed for an injunction and damages. The rent notes given by the Company, then unpaid, were delivered over by the military authorities to the proper city authorities, when the government of the City was transferred to the Mayor and Council. Those unpaid when this litigation was begun, were held by the City then, and for several months after-titled to hold it exclusively until the case was wards. They were tendered to the Company by a supplemental answer in this case, and deposited in court where they remain. The note last paid, matured and was paid before the inclosure was destroyed. The City has not tendered back the money so paid, nor has it disclaimed the validity of the payment, nor has it tendered back the amount or any part of it expended by the Company in making the improvements, nor made any offer touching the subject. In the process of the litigation, Clark, the Mayor, applied to the Third District Court of the City for an injunction to restrain the Company from rebuilding the inclosure which had been destroyed, and an injunction was granted accordingly.

The Company thereupon served a rule upon Clark, to show cause why he should not be punished for contempt, in taking such action in another tribunal. At the final hearing of the case, the City offered in evidence order No. 11, See 20 WALL. U. S., Book 22.

As to

finally disposed of. Taylor v. Taintor, 16 Wall.,
370 [83 U. S., XXI., 280]; Hagan v. Lucas, 10
Pet., 400; Taylor v. Carryl, 20 How., 584 [61
U. S., XV., 1028]. Any relief to which the
City was entitled should have been sought there,
and that court was competent to give it, either
in the original or in an auxiliary case.
any other court the matter was ultra vires. Free-
man v. Howe, 24 How., 450 [65 U. S., XVI.,
749]; Buck v. Colbath, 3 Wall., 334 [70 U. S.,
XVIII., 257]. It was unnecessary, unwarranted
in law, and grossly disrespectful to the circuit
court to invoke the interposition of the state
court as to anything within the scope of the
litigation already pending in the Federal Court.

The order of General Canby, No. 11, was is sued seven months after the lease was made. The rights it conferred upon the lessees, whatever they were, had then become fully vested. The order did not purport to annul the lease. It prescribed a rule of conduct as to giving such 23 357